Court ruling could change state’s approach to bail

A state appeals court cast doubt Thursday on the constitutionality of the bail system in California, saying the common practice of setting cash amounts so high that a suspect can’t afford them is justified only for those who are too dangerous to release before trial.

“A defendant may not be imprisoned solely due to poverty,” said the First District Court of Appeal in San Francisco in a ruling that ordered a new bail hearing for a robbery suspect held on $350,000 bail, which he can’t afford to pay.

“Legislation is desperately needed,” the court said, to address “the enduring unwillingness of our society, including the courts ... to correct a deformity in our criminal justice system.”

The ruling, if it stands, would require judges across the state to change their common practice of setting bail in fixed amounts determined by the crimes charged and the defendant’s record.

The cash bail system is under attack on multiple fronts in California. Critics — including the state’s chief justice, Tani Cantil-Sakauye — say it doesn’t promote public safety and is unfair to the poor, who remain in jail while wealthier defendants charged with the same crimes are freed. Defenders of the system, including bail bond companies, say bail provides the best assurance that a defendant will show up in court.

Legislation is pending in Sacramento to overhaul the system and require judges to assess defendants individually and use supervised release and electronic monitoring instead of monetary bail in most cases. A federal judge in Oakland, in a separate case, has cleared the way for a trial on the constitutionality of the bail system.

Attorney General Xavier Becerra has joined the critics, saying in a court filing in the current case that his office would not defend “any application of the bail law that does not take into consideration a person’s ability to pay, or alternative methods of ensuring a person’s appearance at trial.” His office also agreed that the defendant, Kenneth Humphrey, is entitled to a new bail hearing.

Humphrey, 63, of San Francisco, is charged with entering the apartment of a 79-year-old man in May, threatening to put a pillowcase over his head and stealing $5 and a bottle of cologne.

Humphrey, a retired shipyard worker who lived in the same building, had been addicted to drugs most of his life, was enrolled in a rehabilitation program and had felony convictions from 1992 and earlier. A Superior Court judge initially set his bail at $600,000 based on the charges and Humphrey’s record, and later lowered it to $350,000 based on his willingness to undergo treatment. It was still an amount Humphrey could not afford, and he remains in jail.

The appeals court said the trial judge must hold a new hearing and determine how much bail Humphrey can afford and whether he could be safely released without bail. The judge can set bail in a higher amount only after finding by “clear and convincing evidence” that there was no other way to protect the public or to assure Humphrey’s return to court after release, the court said.

It is the trial judge’s “responsibility to ensure that a defendant not be held in custody solely because he or she lacks financial resources,” Presiding Justice J. Anthony Kline said in the 3-0 ruling. That duty cannot be met by relying on a fixed bail schedule that effectively results in pretrial detention orders, he said.

“The use of money bail to detain impoverished human beings in cages as they await trial has caused enormous suffering for far too long in California,” he said. “This ruling will go a long way toward ending that costly and devastating system.”